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Is That English You're Speaking? Some Arguments for the Primacy of Intent in Interpretation

"Textualism" is a very general and abstract term that represents a variety of views about the interpretation of legal texts. One strand of textualism is conceptual and descriptive; this strand makes claims about what texts actually mean. Another strand of textualism is normative; this strand makes claims about how judges ought to proceed when they interpret particular kinds of legal texts, such as constitutions and statutes. In the first part of this paper, we are particularly concerned with an especially strong form of conceptual textualism - the position that texts can be interpreted without any reference, express or implied, to the meaning intended by the author of the text. The defining feature of this form of textualism is the insistence that intentions play no role in the production of meaning, and so we call this view "intention free textualism," or "I-F-textualism." We do not know if anyone actually is an I-F-textualist so defined, although sometimes loose remarks by some self-identifying as textualists suggest that they hold this position. In any event, whether or not there is anyone who actually is a textualist of this stripe, it will be useful to drive a stake through the heart of such a position. Doing so will make it clear that what is at stake in the so-called dispute between textualists and intentionalists is not the conceptual point about what interpretation is and what determines texts' meanings. Rather, it is the normative point about what evidence of authorial intent authoritative interpreters of legal texts should or should not consider, or whether interpreters should look to the intentions of actual authors or hypothetical ones.

Part One, therefore, will establish that textualism of the I-F type is a conceptual impossibility. Regardless of what position people claim to hold, no one can be such a textualist. Part One will establish that texts mean what their authors mean by them. Indeed, texts can only be identified as texts by reference to authorial intent. All of this is consistent, of course, with the possibility that one author might appropriate the marks made by another author and intend a meaning by them that is different from the meaning intended by their creator. It is also consistent with a reader's imagining what a text would mean had it been authored by someone other than its actual author. Leaving these possibilities aside, however, the point Part One establishes is that texts mean what their authors intend them to mean.

In Part Two we deal with how the actual meaning of a legal text - what its author(s) intended it to mean - might differ from the authoritative meaning that an authoritative interpreter gives it. Essentially, such a divergence can be produced whenever the authoritative interpreter is debarred from considering certain types of evidence of authorial intent. The divergence occurs when the excluded evidence, had it been considered, would show the authorial intent to be different from what it appears to be given the restricted set of evidence.